Wilkinson v. Adduci

— Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner refused to consent to a chemical test to determine the amount of alcohol in his blood is supported by substantial evidence. Petitioner has no constitutional right to an attorney at that stage of the proceeding (see, People v Shaw, 72 NY2d 1032, 1033) and may not condition his consent to take the test on first consulting with the attorney of his choice (see, Matter of Smith v Passidomo, 120 AD2d 599). Here, petitioner refused to submit to the test until it was too late to administer it effectively (cf., People v Gursey, 22 NY2d 224, 229). His subsequent consent was irrelevant (see, Matter of Lundin v Hults, 29 AD2d 581). (Article 78 Proceeding Transferred by Order of *1234Supreme Court, Erie County, Rath, Jr., J.) Present — Callahan, A. P. J., Denman, Green, Pine and Davis, JJ.